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Anders v. Industrial Commission

July 16, 2002

BOBBY L. ANDERS, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL. (OTR WHEEL, APPELLEE).
OTR WHEEL ENGINEERING, INC., APPELLANT,
v.
INDUSTRIAL COMMISSION, ET AL. (BOBBY ANDERS, APPELLEE).



Appeal from Circuit Court of Adams County No. 00MR57 Honorable Mark A. Schuering, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

UNPUBLISHED

In separate appeals, respondent employer OTR Wheel Engineering and claimant Bobby Anders appeal from an order of the circuit court of Adams County confirming in part a decision of the Illinois Industrial Commission (Commission). On reconsideration, we now grant respondent's motion to consolidate these appeals.

The arbitrator awarded claimant $193.85 per week for 49 weeks for total temporary disability (TTD) and $22,433.98 for medical expenses. 820 ILCS 305/8(a), 8(b) (West 2000). On review, the Commission affirmed the arbitrator's award in all respects with the exception of (1) modifying the TTD award to $210.19 per week for 70 6/7 weeks and (2) finding that claimant was entitled to $824.15 additional compensation under section 19(k) of the Act, $2500 under section 19(l) of the Act (820 ILCS 305/19(l) (West 2000)), and $329.65 section 16 attorney fees. The circuit court modified the decision to add additional compensation of $580.93 under section 19(k) of the Workers' Compensation Act (Act) (820 ILCS 305/19(k) (West 2000)) and $232.37 additional attorney fees under section 16 of the Act (820 ILCS 305/16 (West 2000)) based on unpaid medical bills and confirmed the Commission decision in all other respects.

The issues raised by respondent on appeal are whether (1) the Commission's calculation of claimant's average weekly wage was against the manifest weight of the evidence, (2) the Commission's finding of the duration of TTD was against the manifest weight of the evidence, (3) the Commission's determination that claimant was entitled to additional compensation and attorney fees was against the manifest weight of the evidence, (4) the Commission's finding of the amount of section 19(l) additional compensation was against the manifest weight of the evidence, and (5) the circuit court's finding that claimant was entitled to additional compensation and attorney fees for unpaid medical expenses was against the manifest weight of the evidence. The only issue raised by claimant is whether the circuit court's refusal to award additional compensation and attorney fees for the $21,246.11 medical expenses incurred at Blessing Hospital was against the manifest weight of the evidence or contrary to law. We reverse the circuit court's modification of the Commission decision directing respondent to pay section 19(k) additional compensation and section 16 attorney fees for failing to pay $1,161.87 in medical expenses and affirm the circuit court's order in all other respects, thereby reinstating the Commission decision in its entirety.

Claimant (born January 30, 1964) testified that he began working for respondent in August 1997. Respondent's exhibit 10 was claimant's payroll records from September 8, 1997, through December 31, 1997, and from January 2, 1998, through February 20, 1998. During this 23-week period, claimant worked 835 regular hours and 44.75 hours of overtime. He earned $8 per hour in straight time and $12 per hour for overtime. In addition to claimant's testimony, evidence was presented from Drs. Phillip Wilson, Michael Feely, Curtis Burton, Arden Reynolds, Leo Ludwig and Marshall Matz.

The Commission found that claimant was temporarily totally disabled commencing February 25, 1998, through July 6, 1999, for a period of 70 6/7 weeks and that claimant was authorized off work by Drs. Wilson, Feely, Burton, and Reynolds during this time commencing with Wilson's note of February 25, 1998, taking claimant off work "unless very light duty then call me." Although Burton released claimant to restricted duty commencing November 9, 1998, the Commission found that respondent continued to pay TTD because it could not accommodate claimant's restrictions. The Commission found that claimant had not reached maximum medical improvement and was not released from medical treatment. The Commission observed that Pierron examined claimant's right hip on November 4, 1998, and recommended arthroscopic surgery. From November 9, 1998, through March 24, 1999, claimant attended appointments with respondent's examining physicians and continued to actively seek medical treatment from his treating physicians for continued complaints of back and right hip pain. Claimant was taken off work again on March 24, 1999, after a visit to the emergency room at Blessing Hospital. Wilson continued claimant off work as of April 5, 1999. Reynolds also continued claimant off work pending his second back surgery in May 1999, and claimant had not been released to work at the time of the arbitration hearing. Based on the foregoing findings, the Commission found that claimant was temporarily totally disabled commencing February 25, 1998, through the date of the arbitration hearing on July 6, 1999.

The Commission further found that claimant's average weekly wage was $315.29, exclusive of overtime. The Commission referred to respondent's exhibit 10 indicating that claimant worked 22 full pay periods for respondent and that the accident of February 18, 1998, occurred during the 23rd pay period ending on February 20, 1998. Claimant's preaccident earnings, beginning with his employment with respondent in August 1997, were determined as of the last day of the employee's last full pay period immediately preceding the date of injury. Claimant's total straight time earnings in the 22 weeks preceding the accident were $6,432. The record indicated that claimant lost eight days of work during the 22-week period prior to the accident. These eight days were deducted from the 22-week period leaving a total of 20.4 weeks worked and resulting in an average weekly wage of $315.29. The Commission found that claimant did not regularly work overtime during the 22-week period and did not include overtime in the calculation of his average weekly wage.

The Commission awarded additional compensation under sections 19(k) and 19(l) and attorney fees under section 16 of the Act based on the respondent's unreasonable and vexatious termination of temporary total disability benefits as of May 25, 1999. The Commission noted that claimant testified he never received a train ticket from respondent and that the proffered travel expenses of $50 was insufficient to cover claimant's costs. The Commission found that claimant's failing to travel 600 miles round trip from Quincy to Chicago for an examination by Matz did not justify respondent's termination of benefits. According to the Commission, while respondent had a right to schedule an examination, the $50 advanced could not cover the cost of his travel, and it was unreasonable for respondent to schedule an exam so far from claimant's home. The Commission took notice of the fact that it frequently reviewed expert medical reports from physicians closer to claimant's home. In addition, the Commission found that the opinion of Matz regarding the necessity of claimant's fusion surgery rendered after his review of claimant's medical records failed to provide a sufficient good faith basis for the termination of benefits so as to avoid the imposition of penalties and fees under the Act. The Commission determined that claimant was entitled to section 19(k) additional compensation in the amount of $824.15, section 19(l) additional compensation in the amount of $2,500, and section 16 attorney fees in the amount of $329.65. The awarded additional compensations and attorney fees were not calculated based on any unpaid medical expenses because the Commission found that the record reflected that respondent received the outstanding medical bills on the day of the arbitration hearing, eliminating any delay in payment warranting the imposition of penalties. In addition, the amount of unpaid medical expenses was not included in the penalties petition filed by petitioner which was based entirely on the termination of TTD benefits.

Computation of average weekly wage is governed by section 10 of the Act (820 ILCS 305/10 (West 2000)). Section 10 sets forth four methods for determining average weekly wage. Sylvester v. Industrial Comm'n, 197 Ill. 2d 225, 230-31, 756 N.E.2d 822, 826 (2001). On the undisputed facts of this case, respondent argues that the Commission utilized the wrong method for calculating average weekly wage and that the correct calculation should result in an average weekly wage of $293.36 instead of $315.29. Since the analysis amounts to a determination of which statutory method applies to the undisputed facts of this case, this is a question of statutory construction that we consider de novo. Sylvester, 197 Ill. 2d at 232, 756 N.E.2d at 827.

The Commission applied the third method of section 10 in this case. Under the third method, if the claimant's employment began in the 52-week period preceding the date of injury, claimant's earnings are to be divided by the number of weeks and parts thereof during which claimant "actually" earned wages. Sylvester, 197 Ill. 2d at 230-31, 756 N.E.2d at 826; 820 ILCS 305/10 (West 2000).

Respondent inappropriately relies on Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809, 623 N.E.2d 847 (1993). In Ricketts, the court found that the Commission's use of the third method was improper. In Ricketts, the employee had worked four days over a three-week period so that the appropriate method for calculating average weekly wage was the fourth method instead of the third method. Ricketts, 251 Ill. App. 3d at 812, 623 N.E.2d at 849. The Ricketts court determined that, under the facts of that case, the proper method to be utilized was that referring to circumstances in which the employment was noncontinuous or less than full time. Ricketts, however, is distinguishable from this case for the same reasons that it was distinguished in Sylvester, i.e., the decision was based, not on statutory construction, but on the insufficiency of evidence. Sylvester, 197 Ill. 2d at 234, 756 N.E.2d at 828. Ricketts does not require a different result in the case at bar where there is no dispute that claimant worked full time and was employed continuously from the date of hire to the date of injury. The fact that claimant lost eight days prior to the injury, for whatever reason, did not render his employment with respondent noncontinuous since he remained in respondent's employ. There was no evidence of extended layoffs or intermittent employment. The Commission's finding of average weekly wage was not against the manifest weight of the evidence.

The time during which a claimant is temporarily totally disabled is a question of fact for the Commission; claimant must prove not only that he did not work, but that he was unable to work; and the dispositive test is whether the claimant's condition has stabilized. Freeman United Coal v. Industrial Comm'n, 318 Ill. App. 3d 170, 175, 741 N.E.2d 1144, 1148-49 (2000). In determining whether the Commission's finding of fact is against the manifest weight of the evidence, this court considers the sufficiency of the factual evidence in the record to support the Commission's determination. Freeman United Coal, 318 Ill. App. 3d at 173, 741 N.E.2d at 1147, quoting Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 450, 657 N.E.2d 1196, 1199 (1995).

Respondent argues that claimant has failed to prove that he was disabled from November 8, 1998, to March 29, 1999, because, on November 8, 1998, Burton released him to return to light-duty work. Respondent conceded that claimant sought to return to work for respondent, but respondent had no work available within claimant's restrictions. According to respondent, it was claimant's "responsibility to prove that he was unable to find work within his restrictions after reaching maximum medical improvement." "[A]n argument focusing on whether the claimant is available for work in some other capacity ...


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